SPEAKING NOTES ON FEDERAL ANTI-TERRORISM PROPOSALS, BILL C-36 For presentation to the House of Commons Committee on Justice and Legal Affairs and Human Rights October 30, 2001 John Russell, Vice President On Sept 11th 2001 most of us awoke to face a number of new and disquieting realizations about the world we inhabit. Primary among these is that, hard at work among us, there has been an unseen, and altogether unseeing, evil whose ambitions and capacities to inflict harm can no longer be regarded as being contained within acceptable levels of risk. Moreover, it is an evil that is not simply criminal in nature. It does not seek the destruction of persons or property for private gain or in fits of passion. It seeks the dismemberment of our most cherished basic institutions: our democratic political life, our personal security, our economic freedoms. It is an evil that we must now believe is as patient and cunning as it is ruthless and cruel; and it is not going away. For these reasons, the B.C Civil Liberties Association recognizes that the horrific events of Sept 11th force us to take seriously the presence in our country, and in those of our allies, of ongoing, extraordinary threats to the basic fabric of free and democratic societies. Because the threats are extraordinary, it is to be expected that extraordinary measures will be proposed to combat them. The B.C. Civil Liberties Association is not opposed in principle to such measures. An open society must recognize, with regret, that when its basic institutions face extraordinary threats, special measures may be appropriate. A re-balancing of security interests with privacy and other civil rights and liberties may be necessary in these circumstances. However, it is crucial to our commitment to the ideals of an open society that this should represent the very beginning, not the end, of a debate about balancing security and civil liberties. To say that civil liberties can be qualified when an open society encounters extraordinary threats to its institutions is almost a truism. No rights are absolute, and security is a fundamental condition of the exercise of all other rights. But saying this much settles no issues at all. We still require some principled basis from which to assess the appropriate limits of government action. One guiding principle should be evident and unassailable: restrictions to established basic rights and freedoms are justified only if they are necessary ultimately for the sake of those very same rights and freedoms. Any retreat from this principle signals a retreat from what we have accomplished as a society, from what is arguably our most remarkable moral and cultural contribution to history, one that has been bought not only with the most careful thought and effort but with great personal sacrifice as well. Two fundamentally important implications follow. First, restrictions on basic rights and freedoms must be no greater than are reasonably necessary to address the problems at hand. In this respect, the onus is clearly on the government to demonstrate where existing institutions of law enforcement are inadequate to protect our basic institutions of rights and freedoms. Second, if restrictions on established basic rights and freedoms can ultimately be justified only for the sake of those rights and freedoms, there must be some evident commitment that the restrictions will come to an end. In our view, neither of these objectives has been properly met by the federal government's anti-terrorism proposals contained in Bill C-36. There are two main problems. First, the government's proposed definition of terrorist activity is simply too broad. The definition would, among other things, count as terrorist activity any unlawful politically motivated acts that threatened to seriously disrupt an essential service. This is truly astounding. It would brand as terrorists doctors, teachers, nurses, or trade unionists who threatened to strike or withhold services in the face of provincial orders deeming their work an essential service. It could also brand as terrorist the civilly disobedient actions of First Nations citizens who blockade an airport or highway. Under other provisions, those who supply shelter, advice, money or other aid to such Canadians will risk being prosecuted for harbouring or abetting terrorists. And all suspects and accomplices will be at risk of being arrested and detained or being compelled to give testimony in the absence of any formal charges being laid. It requires no strong act of imagination to recognize that any use of anti-terrorism measures against merely dissident Canadian citizens will have profoundly destructive effects on the legitimacy of the campaign against terrorism and on the ties of civility and mutual respect which bind us together as a nation. Indeed, we must steadfastly reject branding as terrorists Canadians who are engaged in civilly disobedient protests that only press at the boundaries of civil society but do not seek their subversion. Aside from the injustice involved, we must reject such branding of dissidents for a simple and obvious reason: they may take it to heart. That, of course, would be a remarkable victory for the real terrorists and a terrible defeat for us. For all these reasons, then, the association or assimilation of familiar modes of dissent with terrorism is something that must be absolutely avoided. Canada must not multiply the number of terrorists on the ground in this country by an ill-conceived legislative enactment. The second general issue raised by the legislation concerns the need for a clear commitment to make it temporary. If we take seriously the principle that established basic freedoms can only be curtailed ultimately for the sake of those freedoms, we must have some clear commitment to restore them at some point. A parliamentary review, which is all that the government has proposed, is no commitment at all. A sunset clause of 4 or 5 years would be. Moreover, legislative reviews have a notorious history of being ignored altogether and, if not ignored, of being manipulated into backroom rubber stamps of the status quo. A sunset clause would guarantee an open and full parliamentary debate on these provisions should it be necessary to continue them. The likely effect of these proposals on the Canadian Muslim community affords another compelling reason for a sunset clause. For the main burden of this legislation is going to fall almost exclusively on Muslim Canadians, particularly on those of Arab descent. Only the most naive and uninformed observer could think that exercises of preventive detention, investigative hearings, and prosecutions for financing or abetting terrorism that are contemplated by this legislation will not at times be mistaken, sometimes seriously and with tragic consequences. Thus, as the Muslim Canadian community becomes the main locus of investigation, and as genuine controversies arise and mistakes are made, it is practically inevitable that Muslim Canadians will ask questions about their government's commitment to respect their rights to fundamental freedom and equality alongside their Canadian brothers and sisters. These are social costs that we must do all in our power to avoid. In these respects, the government's proposals in Bill C-36 to strengthen the hate provisions of the Criminal Code must be recognized as, at best, an ineffectual sop and, at worst, a red herring to divert attention from more pressing issues about the protection of fundamental freedoms. Indeed, in coming days, the principal threats to Muslim Canadians' basic freedoms and equality are not likely to come from private Canadian citizens but from government itself. In this last respect, a general cautionary warning is appropriate. The undeniable fact is that these proposals traverse the grayest areas of the rule of law. When we make Canadian citizens subject to preventive detention on a reasonable suspicion but not on probable grounds of a threat of wrong-doing, when we compel them to testify when no charges have been laid against anyone, when we permit elected partisan figures to exclude possibly exculpatory evidence from criminal trials or to order covert surveillance of Canadian citizens, we come perilously close to being ruled by men and women and not by law. Such extraordinary, frightening steps can only be taken, if at all, with the utmost restraint and with the ultimate goal of securing or restoring established basic rights and liberties. This imposes a duty on all federal legislators to be satisfied that the proposals that are adopted are as limited as are reasonably necessary in the circumstances, and that there are sufficient guarantees in place so that any limitations to established basic rights and freedoms will be withdrawn once the terrorist threat has been reduced to an acceptable level.